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Legal Information: Federal

Immigration

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Updated: 
May 17, 2021

What is a battered spouse or child waiver? How do I know if I am eligible?

A battered spouse waiver and a battered child waiver are legal protections under VAWA for immigrant victims of abuse who have conditional permanent residence. Normally, once you are married to your US citizen or lawful permanent resident spouse for two years, you can apply to get the “condition” removed from your lawful permanent residence when your spouse, who filed the initial application for your status, signs a “joint petition” with you. However, when there is domestic violence, the abusive spouse may refuse to file the joint petition or use it as a tool of power and control to further abuse you. This is why Congress created the battered spouse waiver under VAWA. If you are abused, you can file for a “waiver” of this “joint petition” requirement so that you don’t need your spouse’s participation in getting the condition removed from your conditional permanent residence status. If you can prove that you were abused by your spouse or parent, you can get this VAWA battered spouse waiver.

If your US citizen or lawful permanent resident spouse filed a family immigration petition for your children, they also may be able to get the “condition” removed without the abuser signing a “joint petition” based on the abuse committed against you or them by your spouse. If your children received their conditional permanent residence at the same time as you or within 90 days after you, you can include them as “derivatives” on your waiver application.1 Otherwise, your children would file a battered child waiver.

The other eligibility requirements that you’d have to prove to get a battered spouse or child waiver are:

  1. the marriage that is the basis for conditional permanent residence was a “good faith marriage;” and
  2. during the marriage, you or your child were battered or subjected to extreme cruelty by the US citizen or legal permanent resident abuser.1 “Extreme cruelty” is any form of power and control and includes, but is not limited to, being the victim of or threatened with an act of violence, forcible detention that results in physical or mental harm, psychological or sexual abuse, rape, molestation, incest, and forced prostitution.2

1I-751 Form Instructions
2 INA § 216(c)(4)(C)

What is "conditional permanent residence"?

Conditional permanent residence is a special type of permanent residence for certain spouses of US citizens and lawful permanent residents. If you’ve been married less than two years to a US citizen or lawful permanent resident at the time that you get lawful permanent residence, US Citizenship and Immigration Services (USCIS) will grant you “conditional permanent residence.” One way to determine if you have conditional permanent residence is to look at the end-date on your “green card”. A conditional permanent resident gets a green card that is valid for two years instead of ten years.1

Your children may also have conditional permanent residence if your US citizen or lawful permanent resident spouse filed a family immigration petition for them.2

Note: If the abuser won’t file a joint petition with you and you don’t apply for a VAWA battered spouse waiver before your conditional permanent residence expires, you will lose your lawful permanent residence,3 and the government may place you and your children in removal proceedings. However, you can still file your battered spouse waiver or battered child waiver even after your conditional permanent residence has expired.

1 8 CFR § 216.5(e)(3)(i)
2 INA § 216(a)(1), (g)
3 INA § 216(c)(2)

Who is eligible for a battered spouse or child waiver?

You may be eligible for a battered spouse or child waiver if you meet all of the requirements below:

  • you have conditional legal permanent residence as the spouse of a US citizen (USC) or legal permanent resident (LPR) because your marriage was less than two years old when you obtained your residence; or you have conditional legal permanent residence as a child because your parent’s USC spouse filed a petition for you and the marriage was less than two years old when you obtained your residence;
  • the marriage that is the basis for conditional residence was a good faith marriage; and
  • during the marriage, the spouse or child was battered or subjected to extreme cruelty by the USC or LPR abuser.1 “Extreme cruelty” is any form of power and control and includes, but is not limited, to the following: being the victim of or threatened with an act of violence, forcible detention that results in physical or mental harm, psychological or sexual abuse, rape, molestation, incest, and forced prostitution.2

1 INA § 216(c)(4)(C)
2 8 CFR § 216.5(e)(3)(i)

When do I apply for a battered spouse or child waiver?

Normally, you would file a “joint petition” with your spouse or parent to get lawful permanent residence without any “conditions” during the 90 days before your conditional permanent residence expires.1 If the spouse or parent who filed for you is an abuser, however, VAWA allows you to file a “waiver” of this requirement based on abuse.2 The abuse could have taken place at any time, even after your conditional permanent residence has expired.3 To avoid the risk of being placed in removal proceedings, however, you should file the waiver before your conditional permanent residence expires.

By filing for a battered spouse or child waiver, this means you won’t need your abusive spouse to sign any paperwork for you. Instead, you must work with your lawyer and domestic violence counselor to gather evidence of the abuse that you suffered as well as your “good faith marriage” and to file the correct paperwork. It will be very hard to get a waiver without help from an attorney and domestic violence advocate.

Our Immigration page lists national organizations working in the area of immigration law and our Finding a Lawyer page includes the contact information of legal organizations and lawyer referral services by state. You can find domestic violence advocates on our Advocates and Shelters page.

1 8 USC § 1186a(c)(1); INA § 216(c)(1)
2 8 USC § 1186a(c)(4)(C); INA § 216(c)(4)(C)
3Matter of Stowers, 22 I&N Dec. 605 (BIA 1999)

If my spouse was already married to someone else when we got married, can I still qualify for a battered spouse waiver?

If you married your spouse believing that it was a valid marriage but later discovered that your spouse was already married to someone else, you may still qualify for a battered spouse waiver. You would still need to show that you intended to marry your spouse in good faith and that your intended spouse subjected you or your child to battery or extreme cruelty after the marriage ceremony.1

1 INA § 216(c)(4)(D)

How can I prove that I got married in good faith?

To prove your case, you will need to show that you married your US citizen or lawful permanent resident spouse in “good faith.” This means that you didn’t marry your spouse primarily because you wanted to get immigration status.1 However, it’s OK if one of the reasons you got married was for immigration purposes – as long as you also got married because you wanted to spend your life together.

If you are filing for a battered child waiver, you will need to show that your parent married their US citizen or lawful permanent resident spouse in “good faith.”

USCIS cannot require you to provide a particular type of evidence to prove that you married your spouse in good faith, and there is no magic piece of evidence that will provide definitive proof of your good faith marriage. However, common types of evidence include:

  • a statement from you in which you explain how your relationship developed and why you decided to marry your spouse;
  • birth certificates of any children that you have together;
  • photographs of you and your spouse at different times, in different locations;
  • evidence of your courtship, such as text messages, call records, emails, and letters;
  • evidence of shared financial assets or responsibilities, such as joint tax returns, joint property ownership, joint leases, joint bank accounts, joint credit cards, and shared insurance plans; and
  • statements from friends or family who were familiar with your relationship or your reasons for marrying your spouse.

If you are filing for a battered child waiver, you can work with your parent and your attorney to determine what evidence you and your parent can provide to prove your parent’s good faith marriage.

1 8 CFR § 216.5(a)(1)(ii); See Matter of Patel, 19 I&N Dec. 774, 783 (BIA 1988) (“Such marriages, entered into for the primary purpose of circumventing the immigration laws, have not been recognized as enabling an alien spouse to obtain immigration benefits”) (citing Matter of McKee, 17 I&N Dec. 332 (BIA 1980); Lutwak v. United States, 344 U.S. 604 (1953); McLat v. Longo, 412 F. Supp. 1021 (D.V.I. 1976); Matter of M-, 8 I&N Dec. 217 (BIA 1958)); Matter of McKee, 17 I&N Dec. 332, 333 (BIA 1980) (“A marriage that is entered into for the primary purpose of circumventing the immigration laws, referred to as a fraudulent or sham marriage, has not been recognized as enabling an alien spouse to obtain immigration benefits”); Lutwak v. U.S., 344 U.S. 604, 613 (1953) (finding no good faith marriage where there was “no intention to marry and consummate the marriages even for a day”); U.S. v. Rubenstein, 151 F.2d 915 (2nd Cir. 1945) (holding that there was no valid marriage where marriage was entered into solely for immigration purposes, and not for ordinarily understood purpose of marriage).

How can I prove that I suffered battery or extreme cruelty?

Once you establish that you married the abuser in good faith, you must prove that you were the victim of “battery or extreme cruelty” by your US citizen or lawful permanent resident spouse during the marriage. “Battery” refers to physical abuse. “Extreme cruelty” can include psychological or sexual abuse, as well as threatened acts of violence that result in mental harm.1 The term covers most forms of domestic abuse, including abusive acts that are not physical, such as threats to get you deported if you were to report the abuse to law enforcement. You should work with your domestic violence counselor to explain, in detail, all the forms of abuse you suffered. You should also explain any abuse that your children suffered.

USCIS cannot require you to provide a particular type of evidence to prove that you suffered battery or extreme cruelty. However, common types of evidence to prove battery or extreme cruelty can include:

  • a statement from you in which you describe incidences during your marriage when your spouse physically abused you;
  • photographs of injuries;
  • medical records;
  • police reports;
  • a letter from your domestic violence counselor or other mental health service provider;
  • an order of protection, which may be known by a different name, depending on your state;
  • documentation that you live or have lived in a domestic violence shelter; and
  • statements from friends or family members who can describe the abuse and its effect on you.

1 8 CFR 216.5(e)(3)(i)

Can the government tell the abuser about my battered spouse or child waiver application?

The government cannot tell the abuser anything about you, including the fact that you have filed a battered spouse or child waiver application. Your information is confidential, and it is illegal for the government to share it with the abuser. If you suspect that the abuser has contacted the government or that the government has shared any information about you with the abuser, you should tell your immigration attorney immediately. You may be able to file a complaint against the government.1

1 8 USC § 1367